Chen Boon Feng & 26 Others v PLATINUM EMINENT SDN BHD (BA-22NCvC-113-03/2023)

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LIEW PIT WOON 05/06/2025 09:25:02

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NGU KEONG YEW @ NG KEONG YEW

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NOMAZURA BINTI YUSOF

NORHAWA BINTI ISHAK ... PLAINTIFFS AND PLATINUM EMINENT SDN. BHD. … DEFENDANT Grounds of Judgement Introduction [1] Plaintiffs filed two (2) applications via enclosure 9 for a summary judgment to be recorded under Order 14 of the Rules of Court 2012 (ROC) and enclosure 56, an application to strike out Defendant's Counter Claim under Order 18 Rule 19 ROC. [2] On 15.1.2025, except for 27 of them, all other Plaintiffs entered into a Consent Judgment with the Defendant to withdraw their claim without liberty to file afresh and no order as to cost. The 27 Plaintiffs which are proceeding with the claims were Plaintiffs No: 17, 33, 34, 41, 42, 46, 47, 50, 51, 57, 61, 70, 75, 83, 84, 86, 87, 88, 90, 91, 92, 93, 94, 98, 101, 105 and 106 (the remaining Plaintiffs/purchasers). [3] The applications were heard together, and after hearing both parties, I allowed both applications with cost. [4] Defendant has now appealed to the Court of Appeal, and below are my reasons. The Parties [5] The remaining Plaintiffs were the purchasers of a parcel/unit in a residential project known as "Aera Servis Residensi @ Aera" (the Project), which consisted of two (2) blocks, Tower A and Tower B (the property). [6] The Defendant is the developer of the Project. Factual Background [7] Upon payment of the respective parcel/unit deposit by the purchasers, they entered into a sale and purchase agreement (SPA) on the respective dates (between April 2017 – August 2017) with the purchase price as tabulated in exhibit B of enclosure 30. [8] By letter dated 24.1.2017, the Controller granted an extension of twelve (12) months to deliver vacant possession of the property and to complete the common facilities (from 36 months to 48 months) (the Controller's EOT). [9] On 24.3.2021, Defendant wrote to the purchasers informing them that the Minister had on 3.3.2021 granted another extension of time from 18.3.2020 to 31.8.2020, a total of 167 days (EOT 1) and therefore, that period to be excluded in the calculation of the time for delivery of vacant possess and completion of the common facilities. [10] By letter dated 21.1.2022, Defendant wrote to the purchasers that the Minister again had granted them another extension from 1.9.2020 to 31.12.2020 (122 days) (EOT 2), which then to be excluded in the calculation of the time period for delivery of vacant possession. [11] In the present case, the purchasers are no longer challenging the Controller's EOT, EOT 1 and EOT 2. [12] On 28.4.2022, Defendant again wrote to the purchasers that the Minister had granted another extension from 1.6.2021 to 31.10.2021 (153 days) (EOT3) to be excluded in the calculation. On 27.7.2022, the purchasers filed a judicial review at the Kuala Lumpur High Court (KL HC) (WA-25-434-07/2022) to quash EOT 3 (JR Application). [13] The KL HC quashed EOT 3, and therefore, Defendant is liable to pay the Liquidated Ascertain Damages (LAD) as in Annexure C. [14] Defendant failed to pay the amount; hence, this action was filed against them by the purchasers and, subsequently, these applications (enclosure 9 and 56) by the Plaintiffs. [15] The Defendant objected to the applications and raised the following issues:

The date of SPA (and not the date of the booking fee) ought to be used to calculate LAD.

The disputes raised in the JR Application are similar to this action and, therefore, tantamount to a multiplicity of proceedings.

The extension of time by the Minister, EOT 3, is valid and lawful.

Doctrine of estoppel, laches and/or acquiescence is applicable.

The above issues raised is a triable issues. [16] Plaintiffs contended that Defendant failed to raise any triable issues and, therefore, summary judgment ought to be allowed (Bank Negara Malaysia v. Mohd. Ismail Ali Johor & Ors [1992] 1 CLJ 14). Analysis and Findings Enclosure 9 – Plaintiffs' application for summary judgment. [17] Both applications were heard together while keeping in mind the similarities and differences of the law applicable for summary judgment and a striking out application; the central concern for determination is whether there is a triable issue raised that necessitates a full trial of the matter. The Booking Fee [18] On this issue, though both parties are consensus on the matter, for completeness, reference is made to the Federal Court case of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 2 CLJ 441. It is now trite that if the developer collects a booking fee, deposit or initial payment before the SPA date, the date of the said payment shall be the commencement date for the purposes of calculating LAD. The Federal Court answered the question of law as follows: "Where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of Schedule G and/or H type contracts under Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (Regulation 1989) enacted pursuant to Section 24 of the Housing Development (Control and Licensing) Act 1966, whether the date for calculation of liquidated agreed damages ('LAD') begins from:

the date of payment of deposit/booking fee/initial fee/expression by purchase of his written intention to purchase; or

from the date of the sale and purchase agreement? [19] Her Ladyship, Tengku Maimun CJ, in delivering the judgment of the Federal Court, held that: "the date for calculation of liquidated agreed damages ('LAD') begins from the date of payment of deposit / booking fee / initial fee / expression by purchaser of his written intention to purchase." [20] Therefore, I am bound by the above clear decision that if the Developer/Defendant had collected any payment before the SPA date, the calculation for LAD starts from when the booking fee was paid. Duplicity of Proceedings [21] It was not disputed that the JR Application was filed to quash EOT 3 that was given by the Minister. However, in the present action, the purchasers are making a claim for LAD against the Developer/Defendant. I am of the opinion that this is not a duplicity of proceedings, as the nature of the claim and remedies sought are different. It was consequent to the decision made by the KL HC that necessitates and finalizes the amount in this claim. [22] The case of Dato' Sri Mohd Najib Tun Hj Abdul Razak v. Peguam Negara & Ors and Another Appeal [2020] 2 CLJ 73 was referred to and in that case, the applicants had filed a judicial review application to challenge the AG's appointment of Gopal Sri Ram and a criminal motion to disqualify him. The respondents objected on the grounds of multiplicity. I quote the relevant observation by the Court of Appeal: "...The nature and jurisdiction of the judicial review applications and the disqualification motions before the criminal court are clearly separate and distinct. The former is a public law remedy to challenge the legality of AG's appointment of GSR. The latter is a private law remedy to seek GSR to be disqualified on grounds of conflict, bias and unfitness. The issue of multiplicity and duplicity does not arise as the remedies sought are different." [23] Similarly in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia [2017] 1 LNS 1741, the respondent had raised the issue that there was a duplicity of proceedings between the judicial review application and the civil action filed. The Court rejected the respondent's contention on the basis that civil actions and judicial review proceedings are different and had this to say: "The argument of the Respondent on the issue of duplicity of proceedings could not be sustained. I am of the view that these two cases are separate and distinct. In the case before me, the Applicant was seeking for, amongst others, a certiorari to quash the decision of the Respondent dated 10th October 2013, a declaration that the said Decision was unlawful and invalid and a mandamus to compel the Respondent to maintain its decision made on 6th December 2010, 22nd April 2011, 6th April 2012 and 15th January 2013 respectively, all of which were public law remedies. Here, the Applicant was seeking for public law remedies against the Respondent for breach of its public law duty and obligations to the Applicant. Whilst in the writ action the Applicant was seeking for remedies arising from the breach of the Applicant's private law rights in tort by the Respondent relating to the panel visits to LUC from 13th May 2011 to 14th May 2011 and 27th May 2011 and from April 2013 to 30th April 2013. The premise of these two claims were different." The JR Proceeding [24] Undisputedly, the EOT 3 of 153 days have been quashed by the KL HC and, therefore, had been excluded in the calculation of the time period for delivery of vacant possession and completion of common facilities. [25] However, Defendant attempted to question the validity of EOT 3 before this Court, which I find improper. The current position remains, and I agree with the Plaintiff that such attempt would tantamount to collaterally attacking the Judicial Review order granted by the KL HC (see Ann Joo Steel Berhad v Pengarah Tanah Dan Galian Negeri Pulau Pinang [2019] 9 CLJ 153 and Yong Tshu Khin & Anor v. Dahan Cipta Sdn Bhd & Anor And Other Applications [2021] 1 CLJ 631). [26] The Defendant has cited various cases and authorities at length on the issue of the validity of EOT 3, which I find irrelevant to the present application. The Defendant seeks to divert my attention from the simple core issue, namely the amount of LAD payable by them based on the current position of both parties, i.e. without regard to the period stated in EOT 3. As it stands now, that would be the legal position and the purchasers' rights in calculating the amount of LAD due under the SPA. [27] The Plaintiffs have successfully countered other minute issues raised by the Defendant in their submission, and I agree with the Plaintiffs' argument. To my mind, those are not valid issues for the matter to go to trial. Enclosure 56 – Plaintiffs' application to strike out Defendant's counterclaim [28] As to the preliminary objection to filing the affidavits, I will grant an extension of time for the justice of the case, accept the late filing of the Defendant's affidavit and deal with the matter on its merits. [29] Defendant had filed a counterclaim against the Plaintiffs based on the tort of abuse of process. Plaintiffs' basis for striking out was that there was no cause of action or tort of abuse of process. Abuse of Court process is where relief at law or in equity is used, not to remedy a genuine grievance but as an instrument of oppression. This was explained by Gopal Sri Ram JCA (as he then was) in Jasa Keramat Sdn Bhd & Anor v. Monatech (M) Sdn Bhd [1999] 4 CLJ 533. [30] "Abuse of Court Process" was also defined in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340, where Gopal Sri Ram JCA (as he then was) had opined as follows:- "When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process." [31] The question before the Court now is to determine whether the purchasers' claim against the developer for LAD is a genuine purpose or a collateral purpose. I agree with the Plaintiffs that their claim is a genuine redress that is allowed under the law due to the delay in delivery of vacant possession by the Defendant. These rights have been stipulated in Clause 25(2) of Schedule H. Therefore, the Plaintiffs are merely enforcing their statutory rights provided under the law and cannot be said to be an abuse of court process. [32] Defendant also objected to this application, stating that the application is defective as Plaintiff had cited Order 18 Rule 19(1) sub-para

(a), (b), (c), (d) in a conjunctive manner i.e. "and" instead of in disjunctive manner i.e. "or". [33] On the above issue, I agree with Plaintiff, referring to the case of Malayan United Finance Bhd v. Cheung Kong Plantation Sdn Bhd & Yang Lain [2000] 2 CLJ 601, where Abdul Hamid Mohamad H (as he then was) held that an application which has cited all the sub paras under Order 18 Rule 19(1) Rules of Court 1980 in a conjunctive manner does not necessarily mean that the application is not in accordance with the rules. This principle was subsequently endorsed by the Court of Appeal in See Thong & Anor v. Saw Beng Chong [2013] 3 MLJ 235, where Ramly Ali JCA (as he then was) had this to say:- "An applicant for striking out under O. 18 r. 19 can rely on any one or more than one sub-paras. (a) to (d). So far, there is no authority to say otherwise... ... Even though sub-paras. (b) to (d) are to be read disjunctively, it does not mean that an applicant cannot rely on more than one sub-paragraph in his application. (see: Malayan United Finance Bhd lwn. Cheung Kong Plantation Sdn Bhd & Yang Lain [2000] 2 CLJ 601; Pegasus Engineers Sdn Bhd v. Sambu (M) Sdn Bhd [1998] 3 CLJ 677; [1998] 4 MLJ 129 and Malaysian Court Practice 2007 Desk Edn. (High Court) p. 239)." [34] Defendant had, again at length, submitted on the details and grounds in relation to the JR Application at the KL HC, which, I am of the view, is irrelevant to be a basis in their objection to this application. Conclusion [35] Based on the above, I am of the view that Defendant had failed to raise any triable issue to warrant the need for a full trial. Hence, summary judgment was recorded pursuant to Order 14 of the ROC on the amount of LAD to be paid by Defendant to the remaining Plaintiffs as stated in the application. [36] I further find that Defendant's counterclaim does not disclose reasonable cause of action and is fit to be struck out under Order 18 Rule 19 of the ROC. [37] Both applications are therefore allowed with cost of RM5000 each, subject to the allocator fees. Dated this: 4th June 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) Judge Shah Alam High Court NCVC 9 Counsels: For the Plaintiffs: Wong Renn Xin Messrs K L Wong For the Defendant: K. F. Ee together with Hiew Yee Peng Messrs K. F. Ee & Co.